People v. Thompson

• Decision Date: 27 September 2013
• Docket Number: Docket No. 1–11–3105.
• Citation: 997 N.E.2d 681,2013 IL App (1st) 113105,375 Ill.Dec. 370
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Rudolph THOMPSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 113105
997 N.E.2d 681
375 Ill.Dec. 370

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Rudolph THOMPSON, Defendant–Appellant.

Docket No. 1–11–3105.

Appellate Court of Illinois,
First District, Fifth Division.

Sept. 27, 2013.

[997 N.E.2d 684]

Michael J. Pelletier, Alan D. Goldberg, and Lindsey J. Anderson, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Jon Walters, and Michael G. Gamboney, Assistant State's Attorneys, of counsel), for the People.

OPINION
Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant Rudolph Thompson was convicted of first degree

[997 N.E.2d 685]

murder and was sentenced to 50 years in the Illinois Department of Corrections. Defendant was also sentenced to an additional 40 years for personally discharging the firearm that proximately caused the victim's death, pursuant to a mandatory firearm enhancement that required him to receive an additional 25 years to natural life, bringing his total sentence to 90 years in the Illinois Department of Corrections. On appeal, defendant argues that he is entitled to a new trial because (1) the prosecutor made a number of errors that, individually or cumulatively, so infected the trial that defendant did not receive a fair trial; and (2) during voir dire, the trial court instructed the jury on gang evidence despite having earlier granted defense counsel's motion in limine to bar the introduction of such evidence in thE state's case-in-chief. Additionally, defendant asks us to reduce his sentence or remand for resentencing because (1) the 25–years–to–natural–life mandatory firearm enhancement is unconstitutionally vague and (2) the trial court improperly bifurcated defendant's sentence instead of considering the enhanced range, resulting in an excessive sentence. For the reasons that follow, we affirm but order the mittimus to be corrected.

¶ 2 BACKGROUND ¶ 3 I. Pretrial Proceedings

¶ 4 On August 19, 2009, defendant was indicted for, inter alia, first degree murder and attempted armed robbery for the shooting death of victim Francisco Villanueva. On June 21, 2011, the defense filed a motion in limine to preclude the State from eliciting or arguing evidence of any gang affiliation of defendant, as well as a motion in limine to prevent testimony that defendant was using illegal narcotics at or near the time of the shooting. The trial court granted the defense's motion concerning gang affiliation “as it relates basically to the State's case in chief,” but indicated that “depending on the evidence as it is adduced it is possible that this Court will allow certain gang evidence to come in should I deem it relevant at a later time either by way of explanation of a change of testimony by one of the witnesses or any other unforeseen circumstance that might occur. I will deal with it on a case by case question by question basis.” The trial court denied defendant's motion concerning drug consumption, finding that “the basis of knowledge on the part of * * * the three eyewitnesses for the State[ ] is predicated on a social circumstance in which drugs were used” and the drug use was more probative than prejudicial on the issue of defendant's state of mind and to indicate why the witnesses were together; the court also noted that “I could see relevance both for the State and the Defense in that certainly their drug consumption in the evening or early morning hours before they witness a shooting could have probative value on their ability to observe or whatever testimony they offer regarding the defendant's conduct.”

¶ 5 II. Trial ¶ 6 A. Jury Selection

¶ 7 Jury selection occurred on August 26, 2011. While addressing the venire, the trial court stated:

“THE COURT: There may be evidence in this case—I am talking to the 28 people I just questioned—of gang membership. What I want to tell you * * * is that gang membership in and of itself cannot be considered by you because he or she is in a gang, that they are guilty of a crime.

Does everybody understand that?

PROSPECTIVE JURORS: Yes.

THE COURT: It is just a part of the evidence, but it is not the thing that

[997 N.E.2d 686]

should make you make your decision. It is another thing to consider along with all the other evidence in this case in reaching your verdict.

Would everyone follow that law in this case?

PROSPECTIVE JURORS: Yes.

THE COURT: Anyone take issue with it?

No one is indicating.

Understand it is something that you can consider, but it is not a reason to say in and of itself, in other words, just [because] he sat down and said I am in the Insane Pastry Cooks, right, that is not enough in and of itself to convict a person.

Does everybody understand that?

PROSPECTIVE JURORS: Yes.

THE COURT: You have to listen to the evidence and decide the case by the evidence.”

¶ 8 B. State's Case–in–Chief

¶ 9 Defendant's trial began on August 29, 2011. The State's witnesses included three witnesses to the shooting and the testimony of defendant's ex-girlfriend, who claimed that defendant confessed to the shooting.

¶ 10 1. Christopher Smith

¶ 11 Christopher Smith, whose his nickname was “BC” or “Black Chris,” testified that he had two prior felony convictions. Smith first met defendant in grammar school and they had known each other for approximately 10 years.

¶ 12 Smith testified that, on July 29, 2003, he met defendant at approximately 6 a.m., when Smith was driving a Cutlass down the street. He observed defendant driving down the street in a white van and asked defendant if he wanted to split the cost of some marijuana. Defendant agreed, so Smith parked his vehicle and entered defendant's van, sitting in the back. They drove down Harper Street and ran into “Cecil” and “Corn,” ¹ whom Smith had known for approximately five years; Smith testified that he had a child with Corn's sister Carla. Cecil and Corn offered to share their marijuana with defendant and Smith, so they entered the van. They drove to a gas station, where defendant and Cecil switched seats so that Cecil was in the driver's seat and defendant was in the back. They drove around, smoking marijuana. At approximately 7 a.m., someone suggested they drive somewhere for food. They drove to a Hispanic man selling food in a little truck near CVS High School; Smith lived in the area and had seen the man before.

¶ 13 When they arrived, defendant exited the vehicle and shot the man. Smith heard a gunshot, and defendant reentered the van and said “pull off quick.” Defendant was the only one outside the van; Smith was in the van on the telephone with Carla. When defendant returned to the van, he had a rifle, approximately 18 to 20 inches long, and Smith observed the man from the truck lying on the ground. They drove to 92nd and Essex, and Smith told defendant that he was “bogus” for shooting the man. When they arrived, everyone exited the van and went their separate ways; Smith entered a nearby house.

¶ 14 Smith testified that, on April 1, 2009, he was visited by police while incarcerated at Logan Correctional Center. He did not speak to them that day, but agreed to speak with them at another location, so on April 13, 2009, he was brought before a grand jury and talked to the police on that day. Smith testified that he was not promised anything on either April 1 or April 13, although he had a chance to speak with his mother on April 13, and did

[997 N.E.2d 687]

not receive any type of consideration for testifying.

¶ 15 On cross-examination, the defense asked Smith whether defendant owned a white van, and Smith responded that “[h]e was in one.” Smith admitted that he did not tell anyone about the shooting until he was approached by the police in 2009. Smith testified that he did not observe the gun until after the shooting.

¶ 16 2. Cecil Barren

¶ 17 Cecil Barren, the State's next eyewitness, testified that he had two prior felony convictions and one pending case; Barren testified that he had received no promises of help on those cases from anyone, including the State or the police.

¶ 18 Barren testified that, on July 29, 2003, he was working in the early morning hours, selling drugs with his friend Cornelius Jones at 92nd and Harper. After they finished selling their drugs, he and Cornelius met with defendant and BC when they pulled up in a conversion van. Cornelius asked defendant to take them to purchase marijuana, and the two entered the van. They purchased marijuana, and Barren switched seats with defendant, so that BC and defendant were in the back, while Barren and Cornelius were in the front; Barren switched seats “because I don't roll blunts real good. I just smoke them, to tell the truth.” They smoked marijuana while driving around until the sun came up. After they finished smoking, Cornelius suggested they drive to 87th Street and buy tacos from the food truck that was always near CVS High School.

¶ 19 They pulled up next to the food truck, facing east; the food truck was facing west. Cornelius was planning on exiting the van to order the tacos, “and [defendant] said look at that rack in his hands”; Barren explained that the food truck operator had a large amount of money in his hands. Before anyone could respond, defendant jumped out of the van, holding “[s]ome type of machine gun with a long banana clip on it.” Defendant pointed the gun at the man and asked the man for the money, and the man turned and grabbed the barrel of the gun. Defendant shot the man two or three times.

¶ 20 Barren testified that he was able to observe the shooting and was still sitting in the driver's seat of the van, and that the man fell to the ground when he was shot. Defendant jumped back into the van and told Barren to “pull off, don't stop for no police”; defendant still held the gun in his hand. Barren drove away, and pulled over at approximately 93rd Street. Everybody exited the van and went their...